Migration, belonging and the ‘right to reside’ in little Brexit England

While Theresa May plans to invoke Article 50 this week, the UK is falling apart. In Scotland, Nicola Sturgeon announced a new referendum concerning membership to the United Kingdom. If this referendum happens, there is no doubt that, this time, the Scots will vote to leave (see here). In Northern Ireland, the situation is also clear. There is no way in which the Irish Catholics will agree to remain in the UK that is outside the EU (see here). It will simply not happen. After decades in which the border has been a thorn in the soul of the Irish, both in the North and in South, no one wants a new one. As a result, voices for Irish unification sound louder than ever. It is a difficult problem, because, if the UK leaves the EU, the border between the Republic and the North will become an outside EU border.

In England itself, common sense is gone. According to dominant mythology, the country was once the best in the world. English manufacturing was the best, English education was the best, English food was the pinnacle of culinary achievement. Everything started to go downhill when all these immigrants arrived. This nonsense has been told, over and over, for over thirty years now by the political class – regardless of whether the Tories or New Labour are in power. Immigrants and the unemployed have been blamed for literally everything, although the immigrants are an asset to the country (as has often been documented) and although the unemployed are the real victims of failed vicious neoliberal policies. But this is unimportant now. We had the Brexit and democracy needs to be respected: if Labour’s basis in the de-industrialised hinterlands want less immigrants, who are we to argue with them? Besides, if we argue (not that there is a danger), they will vote UKIP. And who are we to contradict the will of the voter, even if we know that she is wrong? As Rachel Reeves, a Blairite who in 2013 had the temerity to state that, personally, she would prefer Labour to be tougher on benefits than the Tories (see here), said a while ago, it is not facts or analysis that matter, but perceptions and sentiments. Yes, Reeves’ own sentiments. Let’s not lose our precious MP seat and let’s forget the research (among other from Oxford university) that concluded that it was exactly this sort of talk that cost Labour the 2015 election. But this is unimportant now too.

No one could have come up with a ploy like that. The Brexit destroyed Labour for more than a decade. There is no way in which Labour can ever win a general election as long as Corbyn leads. Everybody knows this. The left now also wants to replace Corbyn. The problem is that any struggle for the leadership will likely result in a victory of a right wing candidate. And so nothing advances. The disorganisation and the disintegration continue (see here). Do not expect Labour to win an election before 2030. That is the net political effect of the Brexit so far. Instead of making common cause with the workers and fighting the Tories, Left Labour is supporting the Brexit insanity. It is not working. Corbyn can speak about his nebulous post-Brexit jobs as much as he wants. Never before did Labour winso many members in so few months, never before has an opposition party lost so many by-elections and never before has Labour done so badly in the polls. Today, after seven years of the harshest Tory austerity ever, Labour trails the Conservatives by 16%.

Many heated debates have taken place about all of this. Last year, a couple of days before the referendum, I opined that 1) there was a distinct danger that Theresa May (who is decidedly more to the right than even Cameron) could become Prime Minister; 2) there was the distinct danger that Theresa May would revoke the European Convention of Human Rights Act and 3) there was the distinct danger that the Brexit could endanger the legal position of immigrants in the EU, including the position of EU immigrants. In the meantime, it is clear that May will replace the European Convention of Human Rights by a UK Bill of Rights. Since February, the legal position of immigrants, including EU citizens, has changed. Let us have a look.

The legal position of EU immigrants

Since the changes of February 1st of this year, the Home Office has the power to remove EU citizens from the country if they do not have comprehensive sickness insurance (CSI). This means, in effect, that EU citizens who are not considered to have a “right of residence” – for example spouses of UK citizens and students – and all others who do not have CSI, could be deported or refused entry back into the UK if they leave. The majority of EU nationals living in the UK are entitled to use the NHS, meaning many do not have the insurance (see here).

The Home Office has called this interpretation of the new rules incorrect (‘completely wrong’). According to the Home Office, the government will not remove EU citizens from the country if they do not have CSI (see also here). Unfortunately, it is not that simple. The Home Office can say whatever it wants. The issue is that the law has been changed to such effect that the Home Office has the legal right to deport such immigrants. Whether it will do so or not is a political decision. This means that, at the moment, many hundreds of thousands of EU immigrants are living under a sword of Damocles: safe today, unsafe tomorrow, no one ever knows for sure (see also here). It is clear that May is using EU immigrants as bargaining chips in the negotiations with the EU. Just as many feared, the immigrants have become pawns in the political chess game with the EU (see also here and here).

What are the new rules and the new powers of the Home Office? As Colin Yeo, a barrister specialising in UK immigration law at Garden Court Chambers in London and founder of the Free Movement immigration law blog explains, the new regulations and policies increasingly suggest that an EU citizen who is physically present in the UK but who the Home Office considers does not have a right of residence, is in a precarious and unlawful position and can be removed from the UK at any time (see here). Yeo adds that it is, indeed, highly unlikely that the Home Office will begin a program of mass expulsion of EU citizens, even where they do not have a right of residence. It is extremely unfortunate, though, that the UK Government is casting doubt on the right of residence of so many EU citizens living in the UK. According to Yeo, the tougher approach is probably aimed at homeless Eastern European and Baltic state nationals. There has been a dramatic increase in detentions and removals of this group, and some reports of others being caught up in the same scheme (see here).

But who knows. Any EU citizen without CSI is potentially being affected. For example, an EU citizen who is married to a British citizen and who is currently not working or not self-employed and has no CSI can be removed (an euphemism for expelled). In theory, students without CSI can be removed. Any other EU citizen, who is presently physically present in the UK can be removed if she/he has no CSI, regardless of marital status, work, means or family ties. Another problem is that if such persons leave the UK and re-enter, they may be committing a criminal offence. As a result, they may not qualify for British citizenship for up to 10 years because they may face refusal on good character groups for breaching UK immigration laws (see here).

Previously, EU citizens could live in the UK freely and without any need to prove their status. Paragraph 22 of the new regulations, however, enables the Home Office to “verify” the right of residence of an EU citizen. This involves inviting the person to prove evidence of their right of residence and/or inviting the person to attend an interview with Home Office officials (see here).

It is, of course, the question whether the UK government has the right to give these powers to the Home Office. This depends on the sources of the rights for EU citizens residing in the UK. The “right of residence” is usually interpreted as a reference to Article 7 of Directive 2004/38/EC. This article states that a worker, self employed person, self sufficient person with comprehensive sickness insurance or student with comprehensive sickness insurance has a right of residence. However, TFEU Articles 20 and 21 also states that all EU citizens have a right to reside and move freely around the EU (see the Treaty on the Functioning of the European Union (TFEU)). The usual analysis for explaining the co-existence of these provisions is that TFEU Articles 20 and 21 confers a right on an EU citizen to be physically present in any Member State and to physically remain in the territory of any Member State. There is no time limit on this right to reside. Indeed, TFEU Article 21 states that:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect” (see here).

This has been held by the Court of Justice of the European Union to confer a general right to reside in another Member State. The TFEU Article 21 (and Article 20, which is in similar terms) has been interpreted as conferring a direct and strong right of residence on an EU citizen, even an EU citizen who does not fulfil the criteria for the “right of residence” described in Article 7 of Directive 2004/38/EC (Directive 2004/38/EC), often referred to in shorthand as “the Citizens’ Directive” which cites having CSI as a condition for the right to reside (Art 7b reads:

“have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurancecover in the host Member State”).

Yeo explains that the Home Office position is that the “right of residence” is ONLY conferred where the qualifying criteria in Article 7 are satisfied. Essentially, the Home Office position is that any EU citizen physically present in the UK for longer than three months who does not have an Article 7 right of residence (or permanent residence) is living unlawfully in the UK. The logic of the Home Office position is that an EEA citizen who is not a “qualified person” (worker, self employed, self sufficient with comprehensive sickness insurance, student with comprehensive sickness insurance) or with permanent residence then the person is an unlawful resident (see here).

Yeo concludes by writing that the changes are likely aimed at EU citizens that are considered to “undesirable,” such as the homeless. There are many problems. The days that EU citizens did not need to prove their legal status are gone. In practice, everyone can be called for an interview in order to “verify” their status. If this does not happen today, it can happen tomorrow. Apart from the insecurity and the stress that this creates, there is no doubt that the new rules are discriminatory. As Yeo writes, the position of a Polish homeless person, who has not committed any criminal offences or claimed public funds is exactly the same as the EU spouse of a British banker if he/she has no CSI. As far as the Home Office is concerned, they are both equally removable. As Yeo writes: “It may well be that the Home Office has no plans to enforce removals of white, middle class EU citizens who are married to British citizens and have British children in the UK. A Roma person from an Accession state who has no fixed home address may not be so fortunate, despite being in the same position under EU law” (see here and here). This is correct. There is also real inequality here, because the right to reside is now made dependent on the ability to pay for CSI.

But Yeo makes another point, raising the possibility that the Home Office is seeking to reduce the apparent value of EU law protections for EU residents of the United Kingdom with a view to completely abolishing EU free movement law even for existing residents when Brexit occurs. Instead, EU citizens would be offered a domestic UK law immigration status. If this were to occur, EU residents would lose pension, family reunion, non discrimination, protection against deportation and other rights in EU law. EU residents would be entirely at the mercy of UK politicians obsessed with sounding tough on immigration and would have no recourse to the Court of Justice of the European Union to protect their rights (see here).

This then is yet another way in which the Brexit has proved to be ‘the victory of the working class.’